The most formal acts of decision in a constitution-making process involve accepting the document and bringing it into legal effect. Exactly when the constitution becomes law—when a country can say “this is our constitution”—is surprisingly different from process to process. And before that there may have been a moment when the country could have said “Now no one can stop that document from becoming our constitution.”

We can distinguish various separate acts, not all of which will occur in every process, and which do not have the same legal effect in every process. Here is an imaginary example involving many stages:

the constituent assembly adopts the document (adoption);

the constitutional court endorses it as respecting the principles laid down in the peace process (endorsement or certification);

the people approve it in a referendum (ratification);

the president signs the document (assent);

the document is published in the national official record (sometimes called the Gazette) (this might be called “promulgation”);

the document becomes law (which may be the moment the president signs it, or the moment it is published); and

some aspects of the new constitution have legal effect at the moment it becomes law, but the constitution itself says that certain aspects will not take effect for a certain period or until something else happens.

Box 33. Bringing the constitution into effect in Eritrea [1997]: A mistake

Bereket Habte Selassie, the Chairperson of the Eritrean process stated: “It was a mistake not to fix an effective date, or at least specify a maximum period after which the Constitution would come into full force and effect” (Selassie 2003: 312–13).

In some countries one event only occurs: the constituent assembly adopts the document and it immediately becomes law and has effect in its entirety, without the need for anything else to be done. This is more likely to happen in a country without an effective existing constitution. And some countries have more complex traditions on the bringing of laws into effect than others.

Adoption

It would be usual to have a rule that makes the act of adoption perfectly clear—a certain percentage of the constituent assembly or parliament must pass the entire document. Nepal’s interim constitution, unusually, provided only for the preamble and every article to be adopted; there was no procedure for adoption of the whole document. The rules of the constituent assembly say that the preamble will be adopted last, and then a vote must be taken to adopt the whole document. This may turn out to be an unconstitutional provision.

Adoption rules often require “supermajorities,” rather than the usual majority of those legislators present and voting. The support of a number of members equal to more than half of all the seats in the house may be required—or 65 percent, or two-thirds, or even 75 percent. Different majorities may be required for approval of different changes.

Adoption by the constituent assembly could be made the final act—in other words, without requirement of ratification by the people or any formal signature. In a country that is observing the principle of legal continuity, it may be that an act to amend the constitution has to be adopted by the procedures usually followed for passing ordinary laws. This almost always involves the signature of the head of state. But in Papua New Guinea all laws are passed by the parliament alone; the speaker signs a certificate to say that they are properly passed, but is not signing the act into law. Occasionally it may be unclear whether the ordinary procedures apply to adopting the constitution, or whether some special procedure applies.

There may be requirements designed to prevent the rushing of amendments (a source of abuse in several countries); in Ghana there must be two publications in the government Gazette of proposals for amendment, with three months in between, and for certain changes six months’ notice in the Gazette.

Ratification

“Ratification” is a process by which some decision made or act done by one person becomes legally effective by being endorsed by another person. This can be applied to the situation when the people approve a constitution. This would usually be by a referendum or plebiscite. (See part 3.5.) In some countries a referendum on the constitution is prohibited (as in Haiti and Portugal).

Often a referendum would involve a single “Yes” or “No” vote by the whole electorate. If the constitution is for a federal country, it may have to be ratified by the separate vote of each of the states, regions, or provinces. This could involve counting the votes separately for each state in a referendum. But the United States constitution was not effective until ratified by a vote of the state conventions—not the people—of at least nine of the thirteen states. Then the constitution would come into effect—but only for those states that did ratify it. In the end, all thirteen did.

A ratification process will involve something rather like an election campaign, with campaigners for and against the constitution. This is rather different from a public consultation process, because almost certainly it affords little chance to change the document. In the United States process, it was usual for a member of the convention that prepared the constitution to participate in the public debates.

In designing a ratification process, as in designing an election, it would be ideal for the entire country to vote at the same time. In the United States, however, each state organized its own ratification process, and not at the same time as the others. It is hard for later votes not to be influenced by the earlier results; later states may be persuaded to vote “Yes” by an earlier state vote, but equally, an earlier result may affect turnout and distort the later results. (See part 3.4.2.)

Endorsement

In South Africa the constitutional court was required to “certify” that the constitution complied with the thirty-four principles set out in the interim constitution. There may be other forms of endorsement by some body not involved in the preparation of the document. When the secessionist efforts of the province of Bougainville in Papua New Guinea ended, the peace agreement and the (amended) constitution of Papua New Guinea provide for the adoption of a Bougainville constitution by a Bougainville constituent assembly. The Papua New Guinea constitution provided for certain matters to be included in the provincial constitution, and after adoption by the assembly it would be transmitted to the national government. If the national government approved it as meeting the national constitutional requirements, it would ask the head of state to endorse it. It would not come into force until after that.

Consultation with or the approval of some other body may be required; in Ghana, the council of state (an advisory body) must be consulted.

Assent

There may be a good reason for an ordinary law to be signed by the head of state: it happens either because such a ceremonial act has national significance, or because the head of state is given a role in ensuring the constitutionality of laws. In constitution-making the same reasons may not apply. If the people are giving themselves a new constitution as an act of sovereignty, it may seem inconsistent to ask the head of state (who may not even have been elected) to add the final, enacting touch. Possibly the head of state may not wish to sign—if the new constitution will reduce his or her powers. The South African interim constitution said the constitution “shall [which means ‘must’] be assented to by the president”—but suppose he or she refused? The constitution of Portugal also says the president may not refuse to sign a law revising the constitution. There is a legal principle that says “something that must be done will be treated as having been done”—but this is not a particularly satisfactory way of resolving the issue, and courts might be reluctant to apply the principle to so august a person as the president. So some constitution-making processes do not require the signature of any person, or they require every member (or every member who agrees) to sign the constitution.

Promulgation

The word “promulgation” has various dictionary definitions, including the following: to put into force or effect; the official publication of a new law; to make a law publicly known after its enactment; to declare or announce publicly. Historically the only way for people to know about new laws was for them to be publicly announced, if necessary all over the country. Here we use the word to refer to making the law public. Sometimes that may occur in a public ceremony. The constitution will still have to be published.

Coming into effect

In many countries the moment of signature of the head of state is the moment a document becomes a law. But it may not have any legal effect until later, perhaps when it is published in the Gazette (a word used in many countries for the official government publication that announces new appointments, laws, etc.). And the new law itself may postpone its coming into effect until a specific later date, or until something else happens—often until a minister declares that all or part of it comes into effect. It occasionally happens that a law never comes into effect.

The 2000–2005 Kenyan process never resulted in a constitution. The 2008–2010 process was designed with this history in mind.

Parliament was to be able to propose changes, but there was no requirement that its members vote to adopt the constitution. But after the failure to pass and the proposal of amendments, the adoption was put to a vote. It was overwhelmingly adopted—but suppose it had not been? On the correct reading of the law that would not have mattered, but no doubt parliament would have taken the view that it was not adopted.

It then went to a referendum, and was passed. The existing constitution said that “the President shall, not later than fourteen days from the date of the publication of the final result of the referendum, promulgate and publish the text of the new Constitution in the Kenya Gazette.” It was not clear whether “promulgate” was the same as “publish.” The relevant act of parliament said the president must “by notice in the Gazette, promulgate the new Constitution”—which separated promulgation from publication. It also implied that nothing more than a simple Gazette notice was required. If the president did nothing, the constitution would come into effect anyway. However, clearly the president wanted a ceremony.

Many people assumed that the president would have to sign the constitution. But the law did not say that; the last act needed to make it law was the referendum. The president did sign, but he also read out a statement about the constitution and its background, and solemnly waved the constitution toward the crowd—the true act of promulgation in the traditional sense. It immediately became law (oddly enough, in the middle of the day). The constitution was published (with a “Notice of Promulgation”) in the Gazette one week after promulgation.

How about a constitution? If the constitutional change is made by an ordinary law, the usual rule will apply. Or there may be a special provision for amending the constitution that gives a different date. If the new constitution is made by some process outside the constitution, the coming into effect will probably be decided in the new document itself.

Even if some aspects are postponed, it is wise to make their coming into effect contingent on the happening of an event that is bound to happen—or on a specific date—to avoid the risk that they never will come into force. This happened in Eritrea, where the president simply did not bring the constitution into effect even though the document itself said the people “approve and solemnly ratify officially, through the Constituent Assembly, this Constitution as the fundamental law of our Sovereign and Independent State of Eritrea.”